Mitchell_EleanorIn a previous post, we considered the factual background to the appeals before the Supreme Court this week in the cases of R (MA) v Secretary of State for Work and Pensions, R (A), and R (Rutherford). Below we turn to the decision of the Court of Appeal in the latter two cases, and identify some of the main issues likely to fall for decision by the Supreme Court.

The decision below: Rutherford and A

Following the Court of Appeal’s judgment in R (MA) v Secretary of State for Work and Pensions, the claimants in Rutherford and A were (necessarily) at pains to show that their position was more closely analogous to Burnip v Birmingham City Council than to MA.

Their arguments were rejected by the Divisional Court but accepted by the Court of Appeal, which found that individuals in the relevant categories were few in number and capable of easy recognition, with little prospect of abuse and little need for monitoring (at [47], [74]). In light of this, the Court considered that the additional reasons given in MA for finding that justification had been made out were unpersuasive (at [48]-[55]). As a result, even applying the “manifestly without reasonable foundation” test, the failure to make an exception for the claimants could not be justified.

In Rutherford, an additional consideration was the absence of any objective justification for treating children requiring overnight care differently from adults, particularly in light of the obligation under the Convention on the Rights of the Child to treat the best interests of the child as the primary consideration (at [72]-[73]).

The Court of Appeal did, however, dismiss the PSED claim made in A, considering that it was sufficient for the Secretary of State to have considered gender-based discrimination in a general way and holding that he was not in the circumstances required to have regard to the small group of women within the Sanctuary Scheme who might require an additional room (at [59]-[60]).

The issues in the appeals

In hearing the appeals this week, the Supreme Court will of course be required to consider whether the assessment of justification in MA was appropriate and (if so) whether A and Rutherford were properly distinguished. More broadly, however, it is likely that the Court will be asked to determine whether “manifestly without reasonable foundation” is indeed the appropriate test for justification in any and all decisions involving matters of “high policy” (or its implementation). While the test was endorsed by the Court of Appeal in both cases, it appears to sit uneasily not only with the established principle that “weighty reasons” are required to justify discrimination on “suspect grounds” (such as sex), but also with the recent Supreme Court decision in Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill. In that case Lord Mance – with whom all other members of the Court agreed on this point – identified four stages in assessing compliance with Convention rights, and expressed the view that “manifestly without reasonable foundation” was not applicable in respect of the final “balancing” stage (at [46]). Instead the question was whether, “weighing all relevant factors, the measure adopted a fair or proportionate balance between the public interest being promoted and the other interests involved” (at [52]; see also [48]).

Another possible “big-picture” issue relates to the scope of the PSED. As noted above, the Court of Appeal held in A that the duty did not require the Secretary of State to go beyond the broad issue of gender-based discrimination and hence to consider the position of women victims of domestic violence. On one view, this is somewhat difficult to square with the Court’s statement in MA that, in the context of a disability case, a decision-maker “must have a focused awareness of each of the s 149 duties and… their potential impact on the relevant group of disabled persons” (at [91]). Consistent with other PSED decisions, this suggests that in at least some cases attention to “sub-categories” of persons with protected characteristics will be required. In deciding whether this is so, relevant factors are likely to include the importance of the issue in question, the numbers of persons likely to be affected, and the extent of the relevant inequality; it will therefore be interesting to see how the Supreme Court responds to a case like A, where the affected class is relatively small but the resulting disadvantage serious.

The Court’s treatment of these issues is likely to have an enduring impact on discrimination-based challenges to policy decisions – and so for the public at large, as well as for the claimants and their families, this week’s hearing is set to be an important one.